running through a street of the city fact for the jury whether its usefulness was not unnecessarily impaired; that under the General R.R. Act of 1850, the company after laying its track in the street was bound to restore it to its former state, or to such state as not unnecessarily to impair its usefulness; that defend of Utica; that the rails of said road were about four and one-half inches above the surface of the street, and there was no planking or filling between the rails to facilitate the passage of vehicles across the track. W. was engaged in peddling kindling-wood with a horse and wagon ant would not be relieved from this along said street. He left his horse liability because it was lessee of the untied, standing with the wagon, road. 8 Barb., 427; 12 N. Y., 486. near the edge of the sidewalk, and Also held, That it was negligence stepped across the street, about six for defendant to run its trains withfeet from the hind end of his wagon, in the city limits at a rate exceedto solicit a person to purchase some ing that allowed by the city ordiof his wood. While there a train nance. 64 N. Y., 524. came in sight and frightened the Also held, That W. was not, as horse, which started across the matter of law, guilty of contributory track, and drew the wagon over one negligence; that he was lawfully in rail and three wheels over the other, the street and engaged in a lawful the left hind wheel catching on that business; that there is no absolute rail. At the moment the horse rule of law that requires one who started W.'s attention was called to has a horse in the street to tie him the approaching train, which was or hold him by the reins; whether then between two and three hun- W. acted prudently in leaving his dred feet distant. He crossed the horse, was a He crossed the horse, was a question to be detertrack and seized hold of the horse's mined by the jury. 105 Mass., 242. harness and tried to stop him, and while he was there between the horse and the track the engine struck the hind-wheel of the wagon, and drove the fore-wheel against W. who was thrown on the track in front of the engine and killed. It appeared that the train was on this occasion running at the rate of twelve miles per hour, which was faster than the ordinance of the city permitted. There was a city ordinance which forbade any horse being left in any street unless securely tied. Held, It could not be said as a matter of law that W. violated this ordinance; that the jury could have found that the horse was not left within the meaning of the ordinance. Also held, That W. had the right and was under some sort of duty to rescue his horse from danger if he could. He, therefore, had business in the place where he was when killed. John D. Kernan, for applt. S. D. Lindsley, for respt. Held, That as the evidence showed the street after the laying of the track had not been restored to its former state, it was a question of not have been in any proper sense Even if W. were chargeable with carelessness in leaving his horse in the street, such carelessness would the immediate or proximate cause under objection and exception, that of the accident. The question was the bridges and trestle-work were in whether, under all the circumstances, W. exercised ordinary prudence. Gray v. Second Av. RR. Co., 65 N. Y., 561, distinguished. use by the railroad company, and had been since the road was completed, and that no objection was ever made by defendants, or by B., to whose satisfaction the work was to be done. James W. Culver, for applt. R. A. Parmenter, for respt. Held, That this evidence was properly received; that it was competent as showing that the work was properly done and satisfactory; that, as there was evidence upon the trial that plaintiff had conversed with defendant and with B. about the bridges, the fact that no objection to the work or materials was In an action against railroad contractors to re-made tended strongly to show that cover for services rendered to them in build- the contract had been fulfilled. ing bridges, &c., evidence that the bridges, &c., were in use by the railroad company, and that no objection to the work was ever made by defendants or a third person to whose satisfaction it was to be done, is competent as showing that the work was properly and satisfactorily done. The death of one of the defendants, before plaintiff's examination is completed, does not justify the striking out of the testimony already taken. Section 399 of the Code does not apply to such a case. Plaintiff testified that he had a diagram for one of the bridges, furnished by defendants, which he had used. He could not recollect from whose hands he received it, and could not say he did not receive it from the defend ant C., since deceased, but it was not shown that it came from C. Held, That this evidence could not be excluded under § 399. Affirming S. C., 5 W. Dig., 450. Defendant moved to strike out the testimony of plaintiff in his own behalf, taken prior to the decease of the defendant C. This motion was denied. Held, no error; that the death of C. would not justify the striking out of the testimony already taken. Section 399 of the Old Code did not apply to such a case, and could not be invoked to sustain the motion. The disqualification of the witness depended entirely upon the facts as they existed when he gave his testimony, and not upon any change which subsequently occurred before the examination was completed. This action was brought to recov- Plaintiff was allowed to testify er for alleged services and dis- that he had a diagram for one of the bursements in building bridges bridges furnished by defendants. and trestle-work on the Glens Falls The witness did not recollect from Railroad, against defendant and whose hands he received it, and one C., who were railroad contrac- could not say it had not been retors and builders. Plaintiff proved, ceived from defendant C. He tes tified that he had used the diagram erected for the use of the canal, but in the presence of defendant's engi- the public had been permitted to use neer, or in the presence of defend- it as a highway. The referee found ant H. It was not shown that it that the cause of the injury was came from defendant C. Held, That this evidence could not be excluded under section 399 of the Old Code. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Miller, J. All concur, except Rapallo, J., absent at argu ment. MUNICIPAL CORPORATIONS. PROPERTY. N. Y. COURT OF APPEALS. the neglect of the State and its of- N. C. Moak, for applt. Held, no error; that although the State permitted the public to use the bridge and its approaches as a highway, and they were so used, the duty of guarding the sides of the road did not devolve upon the city; that the approach in question was constructively part of the Carpenter, applt., v. The City of bridge, 9 Hun, 63; 8 Ell. & B., 836, Cohoes, respt. Decided April 13, 1880. Plaintiff's horse was killed, and his wagon and harness injured by reason of a defect in the approach to a bridge over the Erie Canal within defendant's limits. It appeared that the bridge and its approaches were on land belonging to the State. Held, That defend ant was not liable; that the duty of guard. ing the bridge and its approaches did not devolve on defendant, but on the State. Affirming S. C., 5 W. Dig., 227. This action was brought to recover the value of a horse killed, and for injuries to a wagon and harness caused by the alleged negligence of defendant in leaving one of the approaches to a bridge across the Erie Canal within the defendant's limits unprotected by a railing. It appeared that at the spot where the injuries occurred there was a steep ascent. The bridge and its ap and it would have been an unauthorized interference with the State property for the city to have placed a railing thereon. Also held, That defendant was not bound to barricade the road so as to prevent travelers from passing over the bridge. Sewell v. City of Cohoes, 75 N. Y., 45, distinguished. Judgment of General Term, affirming judgment for defendant on report of referee, affirmed. Opinion by Rapallo, J. All concur. Decided April 6, 1880. proaches were on land belonging to A corporation, of which defendant was trustee, the State, and the bridge was purchased certain patent rights of plaintiffs and one V., and issued stock to them in part ing first to charge defendant as truspayment, and promised to pay the balance in tee, for the omission of the comcash. On the same day V. was made trustee. Judgment having been rendered against pany to make the reports called for the corporation, and an execution returned by § 12, Laws of 1848, chap. 40, and unsatisfied, and V. having assigned his inter- as a stockholder, on the ground that est to plaintiffs, Held, That no action would the capital stock was not paid up, lie against defendant as trustee, for failure of or a certificate filed as required by the corporation to file an annual report, or as stockholder, on the ground that the capital § 10 of said act. stock was not paid up, or a certificate filed, as V. was equally charged with the duty of seeing that these things were done. An execution against a corporation was returned unsatisfied in 1869, and an action against one of the stockholders was commenced in 1876. Held, That more than six years having expired, the action could not be maintained. C. W. White, for applts. Held, That in view of the fact that V., one of the creditors and plaintiff's assignor, was equally with defendant charged with the duty of calling in the capital stock, and filing the certificate of its payment, and of seeing that the com action could not be maintained. 62 Barb., 51; 4 Hun, 614. This action is brought by plaintiffs, who are creditors of the Brook-pany made its annual report, this lyn Gas Savings Company, a corporation organized under chap. 40, against defendant, one of the trus- Also held, That more than six tees. The company was organized years having expired since the exein March, 1868. On June 5, 1868, cution was returned unsatisfied, and it purchased of the plaintiffs and before this action was commenced, one V. the right to use a certain it cannot be maintained against depatent for generating gas, and in fendant as stockholder. 64 N. Y., payment therefor issued to them 173. $250,000 of its capital stock, and Judgment of General Term, afgave its promise to pay $3,000 cash firming judgment dismissing comin thirty days. Defendant at that plaint, affirmed. time was one of the trustees, and Opinion by Danforth, J. All conV. was on that day made a trustee cur. of the company, "and neither has he resigned or his place been filled CERTIORARI. GENERAL TERM. FIRST DEPT. by a successor." V. and plaintiffs N. Y. SUPREME COURt. sued the company upon the above promise, and on May 11, 1869, recovered a judgment against it for the The People ex rel. John N. Cornell full sum and interest. An execu- v. The Comptroller of the City of tion was issued thereon, and reNew York. turned unsatisfied December 14, 1869. In July, 1876, V. transferred his interest in the judgments to plaintiffs, and on August 27, 1876, they commenced this action, seek Decided March 5, 1880. The granting or quashing of a writ of certior ari is entirely a matter of discretion. The court wisely exercised its discretion in quashing the writ in this case, to review the relator's removal from the office or position of Clerk of Washington Market, inasmuch as the relator delayed eight months after his Order affirmed. Opinion by Potter, J.; Davis P. J., removal before applying for a writ of cer- and Barrett, J., concurring. tiorari. Appeal from an order quashing and vacating a writ of certiorari. JUDGMENT. DEMAND. The relator was dismissed by the N. Y. SUPREME COURT. GENERAL comptroller from the office or position of Clerk of Washington Market in the Bureau of Markets, for the reason that his services were longer required. The writ was not allowed nearly eight months after the moval. no till re F. G. McDonald, for relator. D. J. Dean, for corporation. Held, If any right of the relator was violated by the removal, he was, to say the least, a long time in finding it out or taking any steps to find it out. The court, we think, very wisely concluded that the remedy for the wrong complained of (if it was wrong) had been waived by the relator, or that its enforcement would lead to complications or embarrassments or other wrongs more serious than the original wrong. TERM. FIRST DEPT. William H. Jackson, respt., v. Isaac Binns, applt. Decided May 14, 1880. Where the issues and parties in two actions are Where the agreement of the surety to a lease is absolute to pay upon the lessee's default, without requiring notice of any such default, the lessor is not bound to make any demand upon the lessee before bringing action against the surety. Appeal from judgment entered upon the verdict of a jury, which was directed at the circuit. Action against surety on a lease. Judgment had previously been obtained for a previously accruing installment of rent in an action be tween the same parties upon the same lease. The granting or quashing of a writ of certiorari is entirely a matter of discretion, and we think the court Upon the trial it was claimed that wisely exercised such discretion in a demand from the lessee of the quashing the writ in this case. 53 rent must be made before plaintiff N. Y., 549; 23 Wend., 277. had a right of action against the surety, although the surety's agreement was to pay upon the lessee's default without surety's requiring notice of any such default. This view, of course, disposes of the case, and we do not deem it neccessary or wise to take the time requisite to convince us that the head of a municipal government or a principal may not determine, rather than its appointee or agent, the necessity or occasion for the latter's services. Vol. 10-No. 5*. J. L. Overfield, for applt. Held, This case is fully disposed of by the judgment in action No. 1. between the same parties. The |